Duwah v The Queen
[2011] VSCA 262
•5 September 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2009 0532
| GUMA GOLO GIDION DUWAH |
| Applicant |
| v |
| THE QUEEN |
| Respondent |
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JUDGES: | MAXWELL P, TATE JA and COGHLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 July 2011 | |
DATE OF ORDERS: | 27 July 2011 | |
DATE OF JUDGMENT: | 5 September 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 262 | |
| JUDGMENT APPEALED FROM | R v Guma Golo Gidion Duwah (Unreported, County Court of Victoria, Judge Murphy, 11 February 2009) | |
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CRIMINAL LAW – Appeal – Conviction – Rape – Absence of consent – Awareness of absence of consent – Prosecution case on absence of consent put on alternative and inconsistent bases – Complainant either asleep and unable to consent, or consented because of mistaken identity – Misuse of complaint evidence – Crown concession – Proviso inapplicable – Appeal allowed – Crimes Act 1958 (Vic) s 36.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | Ms H Spowart | Victoria Legal Aid |
| Respondent | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
COGHLAN AJA:
After a trial before a County Court jury, the applicant was convicted of one count of rape. He was sentenced to 4 years’ imprisonment with a non-parole period of 2 years 6 months.
The applicant sought leave to appeal against conviction and sentence. In its written case, the Crown conceded that there were a number of errors in the judge’s charge. We concluded that the concessions were properly made and, after hearing argument from the Crown, that the proviso was inapplicable. We made orders allowing the appeal, quashing the conviction and ordering a retrial. These are our reasons for making those orders.
Factual circumstances
The complainant, who was 15 at the time, met the applicant the night before the alleged rape. The applicant was in the company of three other males who had been fruit picking at Shepparton. The complainant had had a six week relationship with one of the four, Afram Kodi. The complainant was with a female friend.
The six met, purchased alcohol and returned to a flat in Heidelberg. Some of the alcohol was consumed and, at around two or three in the morning, the two girls, Kodi and another male went to sleep in one of the bedrooms. The applicant and the other male slept in the lounge room. In the morning, Kodi, who had been sleeping on the floor of the bedroom, next to the complainant under a blanket, got up to go to the toilet.
The Crown case was that, after Kodi went into the toilet, the applicant went into the bedroom while the complainant slept and removed her jeans and underpants. He then commenced to have intercourse with her, disguised by a sheet over his head. This woke the complainant, who immediately pushed the applicant away.
The complainant gave evidence that she went to bed fully clothed and awoke to find her clothes had been removed and that she was being raped by an assailant with a sheet covering his face. The complainant’s evidence was unequivocal. She was asleep at the time intercourse commenced and did not have the opportunity to give, and did not give, her consent.
The Crown case, based on the complainant’s evidence, was that:
(a) there was no consent, sleep being a circumstance under s 36(d) of the Crimes Act 1958 (Vic) in which a person does not consent; and
(b) especially in light of the applicant’s knowledge that the complainant was sleeping, there was no basis on which he could say that he genuinely believed that she was consenting.
The Crown also presented an alternative case to prove the rape, in the event that the jury did not accept the complainant’s evidence that she was asleep. On this version of the case, the complainant was awake and the applicant’s face was covered with a sheet. The complainant consented (in the mistaken belief that the applicant was Kodi). The two then had sex.
The Crown case, on this alternative version, was that:
(a)there was, again, no consent, mistake as to identity being a circumstance under s 36(f) in which a person does not consent; and
(b) the fact that the applicant disguised himself before seeking consent amounted to an admission that he believed that the complainant would not or might not consent to having sex with him (but would or might consent to having sex with some other person, namely Kodi).
The applicant’s case was that, after Kodi left the bedroom, the applicant entered, made a signal to the complainant and asked her if he could have sex with her. He was, at this point, fully clothed and was not disguised. The complainant agreed to sex and immediately removed her clothes and underwear. The applicant then removed his clothes and they then had sex. She did not push him away at any point. He did not know if she was upset afterwards, but ‘everyone was drunk’.
The recent complaint evidence
Afram Kodi made a statement to police. At the committal hearing for the applicant, Kodi adopted the statement as true and correct and it was read into evidence, forming the substance of Kodi’s evidence-in-chief. Mr Kodi was then cross-examined by counsel for the applicant.
By the time of the trial, Kodi had passed away. At that time, s 55AB of the Evidence Act 1958 (Vic) provided for the use of depositions taken before the Magistrates’ Court as evidence in a subsequent trial, without further proof, in circumstances where the deponent was unable or unwilling to give evidence, including where the deponent was dead.[1] One of the requirements imposed by s 55AB was, relevantly, that the person being tried or his or her legal practitioner had a full opportunity of cross-examining the witness at the time the deposition was made.[2] Over the objection of the defence that no adequate opportunity for cross-examination had been provided, the trial judge admitted the evidence.
[1]Evidence Act 1958 (Vic), s 55AB(2)(a)(ii).
[2]Evidence Act 1958 (Vic), s 55AB(2)(b)(i).
In his statement, Mr Kodi said that, after he returned from the bathroom, the complainant told him that she ‘did something she does with me’ with the applicant. Kodi said that he understood this to mean that she had had sex with the applicant. Kodi also said that the complainant told him that the applicant had had a blanket over his face and that she believed it was Kodi with whom she was having sex.
The evidence of what the complainant said to Kodi was admitted on the basis of the ‘recent complaint’ exception to the rule against hearsay. That is, it was admitted to demonstrate that, after the alleged rape, the complainant had behaved in a manner consistent with her having been assaulted. As defence counsel pointed out, it was not admitted as proof of the substance of the complaint.
In addition, Kodi said in his statement that the accused spoke to him after the evidence of complaint. Kodi said: ‘I then went and spoke to [the applicant], who was sitting on the couch in the lounge room. I asked him whether he had done anything to [the complainant]. At first he said “No”, then he started explaining to me. He admitted to me that he had put the sheet over his head and face so that she would think it was me and he did something to her.’
The prosecution submitted to the jury, on the basis of what became an amalgam of complaint and the admission made to Kodi, that the complainant had consented to have sex with the applicant on the basis of mistaken identity. This interpretation was not consistent with the evidence of the complainant (who said she was asleep) nor with the applicant’s account (which was that he had obtained her express consent).
Ground 2: inconsistent versions
Ground 2 was in these terms:
The learned judge erred in directing the jury that they could convict the applicant on two possible versions of events, namely, the evidence given by the complainant [ie, that she was asleep at the time intercourse occurred] or the complaint made by the complainant to Mr Kodi [ie, that she had consented to intercourse on the mistaken basis that the intercourse was with Kodi, not the applicant].
Ground 2 was conceded by the Crown. It was rightly conceded that the complainant did not give evidence that she had consented to intercourse with the applicant due to mistaken identity. The Crown also conceded that the evidence to that effect was a combination of the complaint evidence from Kodi and the admission made to Kodi. As we have already noted, the complaint evidence was not admissible to prove absence of consent or to be treated as part of the admission. The admission was not capable of separately supporting the alternative view that the complainant did consent because she was mistaken as to the identity of the man who had sexual intercourse with her.
In the trial, counsel for the accused submitted that the complaint evidence was inconsistent with the complainant’s own account of having been asleep when raped. That did not give rise to the alternative case.
The Crown case put to the jury was that the mental element of the offence could be proved in either of two ways, which were left in the alternative. The first version of the Crown case was that the applicant was aware that the complainant was sleeping and aware that she was not or might not be consenting. This case was supported by the evidence of the complainant, who said that the intercourse commenced while she was sleeping. The second version of the Crown case was that the applicant was aware that the complainant was mistaken about his identity and therefore aware that she was not or might not be consenting. This was not supported by admissible evidence.
In short, the Crown went to the jury with one case that was supported by the evidence and one case that was not. The alternative Crown cases were left to the jury by the judge, despite strenuous objection from defence counsel. In the course of answering a jury question, his Honour said:
The law says that consent means free agreement and a complainant is deemed not to freely agree to sexual intercourse where the complainant is asleep or where the person is mistaken about the identity of the person. … If you find that she is asleep, then the law says that she is deemed not to have consented. Similarly, if you find that she is mistaken about the identity. … If you are satisfied beyond reasonable doubt one of those circumstances existed, then you must find that she was not consenting. You do not need to consider that question by reference to just those circumstances. If you are satisfied beyond reasonable doubt on any basis arising from the evidence that the complainant was not consenting, then this element will be proved. So the Crown has got to satisfy you beyond reasonable doubt that [the complainant] did not consent and it can rely on the law which says that a person is not deemed to freely consent, or freely agree where the person is asleep or where the person is mistaken about the identity. … The Crown has got to prove that he was aware that [the complainant] was not or might not be consenting. What the crown says in relation to that is that he must have been aware that she was not consenting because she was asleep, on her version. Or, alternatively, the Crown says, he’s got a sheet in front of his face so she couldn’t have seen who it was. If she thought she was going to have sex with Kodi, then she might have consented to it, but not with [the applicant] who she had only met the night before.
Since a retrial has been ordered, it is appropriate to deal with grounds 1 and 4.
Ground 1: admission of the deposition of Afram Kodi
Ground 1 was in these terms:
The learned trial judge erred in admitting the statement and committal evidence of Afram Kodi.
The deposition of Afram Kodi (which included his statement) was admitted in evidence in the trial pursuant to s 55AB of the Evidence Act 1958 (Vic). The learned trial judge gave a detailed ruling admitting the evidence. It was common ground that the witness was not available because he had died prior to the trial.
At trial, counsel for the applicant objected to the admission of the depositions and sought to have the learned trial judge exercise his discretion to exclude the evidence.[3] The discretion was sought to be enlivened on the ground that the prejudicial value of the evidence outweighed its probative value.
[3]See R v Massie [1999] 1 VR 542, 550‑1 [28].
As noted earlier, the complaint evidence was hearsay. It was submitted that the evidence of complaint was of only slight probative value and there was potential for that evidence to be misused. Further Kodi had not been cross-examined at the committal about the admission.
The learned trial judge in a careful ruling declined to excercise his discretion. That ruling was correct.
On this application it was submitted that one of the preconditions to the operation of s 55AB had not been satisfied. The relevant part of the provision is as follows:
Section 55AB:
(b) that the deposition –
(i)was taken in the presence of the person being tried, and that the person being tried or his legal practitioner had a full opportunity of cross-examining the witness …
It was submitted in this Court that, because the Magistrate before whom the committal had been heard gave some pointed ‘advice’ to the then counsel for the applicant (not trial counsel) about his cross-examination of Mr Kodi, there had not been ‘a full opportunity of cross-examining the witness’. That matter was only referred to in passing at the trial.
It is the responsibility of counsel to conduct a matter as he or she sees fit. It is well settled that no inference adverse to an accused can be drawn from the failure of counsel to cross-examine about a particular topic at committal.[4] It cannot be said that counsel below did not have a ‘full opportunity’ merely because he chose not to cross-examine on a particular subject.[5]
[4]Petty & Maiden v The Queen (1991) 173 CLR 95.
[5]Cf R v Sonnet [2010] VSCA 315.
It follows that the ground as formulated is not made out. There was, however, a different problem, as follows. In his ruling the trial judge indicated that he would give directions about the use of Kodi’s deposition. He did so. When dealing with the question of an admission said to have been made to Kodi, his Honour said:
Now, one of the limitations you are facing as far as Kodi’s evidence is concerned, that particular phrase, that statement of Kodi’s was not challenged in cross-examination at the committal. So he made the statement, he said it was true. But, he was challenged about a lot of other things but that statement was – the cross-examiner, who was then acting for Mr Duwah did not cross-examine him on that.
In answer to a question asked by the jury he gave a similar direction but added:
That might have been an omission or whatever, but the point is it is before you as evidence, subject to the fact that you cannot him (sic) in the witness box now, but it is admissible evidence, subject to those considerations that I mentioned before.
You heard of course [defence counsel] effectively challenging a similar statement made by Hanger and Hanger refuted the challenge. So I hope that addresses the question.
[COUNSEL]: There is a fair bit more in the cross-examination of that witness of course at committal, Your Honour.
HIS HONOUR: Yes, but not on that point.
[COUNSEL]: I thought it was.
HIS HONOUR: It’s not challenged. If you can find it, but I checked that. The cross-examiner goes up hill and down dale about recall how many bottles and all that. Why he was in the toilet. What sort of jewellery he wore. What sort of scarifying he had. What clothes he was wearing and she was wearing, but that issue was not covered.
No exception was taken to these directions and there is no ground of appeal before this court.
Those directions are referred to here in order to demonstrate that the failure of counsel to fully cross-examine the witness had significant consequence for the accused. Those matters do not go to the admissibility of the deposition but to the appropriate warning which should be given with respect to it. Those directions appear to leave open to the jury the possibility of drawing an inference adverse to the accused based on the failure to cross-examine. That was important in this case, because the accused in his record of interview denied that he had disguised himself and denied that he had admitted doing so.
Because the appeal has been allowed, this additional matter does not need to be added as a ground and dealt with, but it is a matter to be considered with care on any retrial.
Ground 3: evidence of admission
Ground 3 was in these terms:
The learned trial judge erred in admitting evidence of conversations between the applicant and Mr Kodi, Mr Hangar and Mr Kariba as admissions by the applicant.
When the evidence as a whole is examined, the admission of the material was appropriate. Although there was some confusion in the case about what was said by whom, it was sufficiently clear that the witnesses Kodi and Hangar gave evidence of what the accused said. It does not seem that the evidence given by Kariba was treated as evidence of an admission.
His Honour instructed the jury appropriately when he said:
Now, before you can use this evidence, these admissions, you must be satisfied of two matters beyond reasonable doubt. First, you must be satisfied that the accused actually made the alleged admission in the terms alleged by Mr Kodi and Mr Hangar. That is, you must be satisfied that Mr Duwah made the statement attributed to him by Kodi and Hangar.
His Honour went on to deal with the evidence in detail including the accused’s denial in the record of interview. He then said:
First you have got to find beyond reasonable doubt that he made the admissions in the terms alleged. Second, you must be satisfied that the accused’s alleged admission was truthful. This requires you to be satisfied that when Mr Duwah made the admissions of his conduct he meant to admit to the crime of rape and that the admission was honest.
That direction was accurate and appropriate.[6]
[6]See Burns v The Queen (1975) 132 CLR 258.
Other errors
We note, for completeness, that the Crown conceded two other errors in the judge’s charge. The first concerned his Honour’s direction that the jury could convict the applicant of rape even if he believed the complainant was consenting but was aware of the possibility that she was not. Such a direction has been held to be contrary to law.[7]
[7]Worsnop v The Queen [2010] VSCA 188.
The second, a point not identified by the applicant but commendably raised by the Crown as a preliminary point in the appeal, concerned the direction that the mental element in the offence would be satisfied if it were proven that the applicant had been aware that the complainant was asleep or might be asleep or, alternatively, that she was mistaken – or might be mistaken – as to his identity. Such a direction has recently been held to be erroneous in Getachew v The Queen[8] and Neal v The Queen.[9]
[8][2011] VSCA 164, [23]–[26].
[9][2011] VSCA 172, [78]–[86].
Those two matters arose under ground 3.
The proviso is not applicable
Errors of law having been conceded, s 568(1) of the Crimes Act 1958 (Vic) required that the appeal be allowed unless we were persuaded by the Crown ‘that no substantial miscarriage of justice [had] actually occurred.’ [10]
[10]See now Criminal Procedure Act 2009 (Vic), s 276(1)(c).
The Crown submission acknowledged that such a combination of errors would ordinarily lead to a retrial. The circumstances of this case were said to be unique, however, such that the court could be satisfied that there had been no substantial miscarriage of justice. Essentially, the submission was that, when this court made its own independent assessment of the evidence, we should be satisfied that the applicant had been proved beyond reasonable doubt to be guilty of the offence, due allowance being made for the ‘natural limitations’ confronting an appellate court proceeding from the transcript.[11]
[11]Weiss v The Queen (2005) 224 CLR 300, 316 [41], 318‑19 [50]–[51].
The Crown contention was that the complainant had given ‘a compelling account’ of the incident in question and that her credit had not been impaired ‘in any meaningful sense’ by cross-examination. It was further submitted that the defence put forward by the applicant – that the complainant had consented – was ‘simply fanciful’.
The inescapable fact, however, was that the prosecution advanced – and the judge left to the jury – two alternative, and factually inconsistent, bases on which they could convict the applicant. Nothing in his Honour’s directions suggested that one alternative was stronger than the other. The clear message was that they were equally available. In the circumstances, it is impossible to exclude the possibility that some jurors found the applicant guilty on the basis of the complainant’s version – that she was asleep – while others found him guilty on the basis of the (misused) complaint evidence, namely, that the complainant had been awake and had participated in sexual intercourse in the mistaken belief that the male involved was Kodi.
Moreover, as senior counsel for the Crown conceded in the course of argument, the availability of an alternative factual basis for conviction must inevitably have diverted attention from the complainant’s version of events. As we have mentioned, on her version she had gone to bed fully clothed but had awoken to find her jeans and underpants removed and the applicant having sex with her. The defence had raised what was, in our view, a real issue for consideration by the jury, namely, whether they could be satisfied beyond reasonable doubt that she could have remained asleep while the applicant removed her clothing and commenced to have sex with her. The availability of an alternative version, in which the complainant was fully awake, might have been viewed by members of the jury as relieving them of the necessity to examine that issue.
It can be seen that the misdirection on the alternative cases went to the heart of the trial and to the basis of the jury’s verdict. It was therefore not an appropriate case for the application of the proviso.[12]
[12]Cf R v Weiss (No 2) (2006) 164 A Crim R 454, 474‑6 [109]–[115], 477 [122]; Worsnop v The Queen [2010] VSCA 188, [37]–[43].
That conclusion is strongly supported by the errors identified in the analysis of grounds 1 and 4.
TATE JA
I agree with the joint reasons of Maxwell P and Coghlan AJA.
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